1. The
Inter-American Commission on Human Rights began the processing of this
case on February 8, 1989, based on a complaint filed by Americas Watch (presently
Human Rights Watch/Americas) on February 7, 1989. In its complaint
brief, the petitioner organization alleges that on February 5, 1989,
there was an attempted uprising in the cells of the 42nd Police District
of Parque São Lucas, in the eastern zone of the city of São Paulo. It
also indicates that with a view to preventing any disturbance,
approximately 50 prisoners were locked in a cell used for solitary
confinement, measuring one meter by three meters, in which tear gas was
released, and that 18 of the prisoners died of asphyxia and 12 were
hospitalized. The detention facility, which has a capacity to hold 32
prisoners in four cells, was at that time, according to the complaint,
holding 63 prisoners. As regards the legal arguments, the petitioner
organization alleges, inter alia: that these events violate the
victims’ rights to life and to humane treatment (Article I of the
American Declaration of the Rights and Duties of Man and Articles 4 and
5 of the American Convention on Human Rights), and the minimum rules on
conditions of detention. Specifically, the petitioner organization calls
on the IACHR to intervene urgently to preserve “the health and safety”
of the prisoners who survived.

2. On
February 8, 1989, in keeping with Article 34 of the Commission’s
Regulations, the pertinent parts of the complaint submitted by the
complainant were forwarded to the Government of Brazil, which was given
90 days to provide the information it considered relevant in relation to
the facts alleged.

3. In
its answer of July 12, 1989, the Government reported, inter alia,
(1) that the judicial investigations provided for in the law had been
initiated to determine the criminal and administrative liability of the
police officers involved, who had been suspended as a preventive measure;
(2) that the cells for solitary confinement (celas fortes) of the
police districts had been deactivated; and (3) that the investigation
into the case by the competent authorities was being monitored by the
Council for the Defense of the Rights of the Person, of the Ministry of
Justice, which had received a complaint on the matter. Finally, the
Government objected to the admissibility of the petition for failure to
exhaust domestic remedies (Article 46(1)(a) of the American Convention;
Articles 37(1) and 32(d) of the Commission’s Regulations). In addition,
it stated its bewilderment that the petition had been considered
“admissible in principle” (Article 34(1)(c) of the Commission’s
Regulations), since the domestic remedies for determining the
responsibility of the persons involved were still being pursued. This
response from the Government was forwarded to the petitioners on July
13, 1989; it was then given 30 days to submit its observations.

4. On
August 25, 1989, the complainant submitted its brief of observations,
indicating, inter alia: that although the investigations had
been initiated, they were unfolding slowly. That contrary to what was
alleged by the Government, the police officers involved had not been
suspended, but had been assigned to the Corregedoria da Polícia,
the organ which, paradoxically, is in charge of investigating the crime
of which they are accused. That in that office they performed functions
normally, without being subject to any administrative suspension nor to
any separation from service so as to facilitate the investigation. That
in the criminal jurisdiction a trial for first-degree murder (homicídio
qualificado) had been initiated against Dr. Carlos Eduardo
Vasconcelos, first officer at the 42nd Police District; attorney Celso
José da Cruz, investigator in charge at the time of the killing; and
José Ribeiro, jailer. That, moreover, there was a separate investigation
or inquiry (inquérito) against the members of the military police
before the Court of Justice of the Military Police, and that the
investigation was to conclude October 18, 1989. As regards the
Government’s assertion that the Council for the Defense of the Human
Person was monitoring the proceeding, the petitioners asserted that it
has no legal powers, only ethical ones. Finally, it stated that domestic
remedies have proven ineffective, and that therefore it cannot be
required to exhaust them.

5. The
petitioners requested, among other things, that “the Government be
ordered to present information that shows that domestic remedies are
effective and appropriate, indicating more precisely and in greater
detail what results would have produced by pursuing them.” These
observations by the petitioners were forwarded to the Government on
August 31, 1989; it was given 30 days to submit its final observations.

6. On
September 29, 1989, the Government submitted its final observations and
indicated, inter alia, as follows: That the police investigation
initiated to investigate the participation of the civil police (police
investigation No. 16/89) had become part of criminal proceeding No.
227/89, which had been forwarded to the court known as the Primeira
Vara do Juri of São Paulo. It also indicated that the military
police investigation (inquérito) initiated to determine the
responsibility of the military police officers involved was before the
3rd Military Justice Ombudsperson. That in addition, an administrative
disciplinary process had been initiated against the police officers
involved. That civil actions for damages had been initiated. That the
officials directly involved had been suspended for 30 days immediately
after the facts and that some of the civilians implicated were later
transferred to the Corregedoria da Polícia, where they had not
performed administrative functions, but had been assigned to carry out
vigilance of the Corregedoria’s premises. That, therefore,
domestic remedies had not been exhausted. The Government’s final
observations were transmitted to petitioners on October 6, 1989.

7. Once the
procedures provided for in the Regulations had concluded, from October
6, 1989, to December 12, 1994, additional information was received on
the following dates: November 22, 1989[2];
January 18, 1990; January 26, 1990 (Note No. 22 of January 16, 1990)[3];
March 3, 1990[4];
June 5, 1990; December 22, 1992; October 24, 1993; February 22, 1994[5];
September 16, 1994[6];
December 2, 1994[7];
and August 10, 1995.

8.
According to Article 48(1)(f) of the Convention, the Commission, in a
letter dated October 23, 1995, made itself available to the parties to
pursue a friendly settlement of the matter. In that letter, the
Commission gave the Government 45 days to report on whether it was
interested in seeking such a settlement, and informed that if in that
period it failed to do so, it would consider the possibility of reaching
a friendly settlement to have been exhausted. The Government did not
make known its position within that time or at any time thereafter.

With this
background, the Commission now moves on to consider:

II. THE COMMISSION’S COMPETENCE

9. The Commission is
competent, in keeping with Articles 26[8]
and 51[9]
of its Regulations, to take cognizance of and rule on this complaint of
a violation of the right to life and humane treatment established in the
American Declaration of the Rights and Duties of Man.[10]

10. It
is also competent to examine complaints against the Brazilian state for
violations of human rights, based on the provisions of the American
Convention on Human Rights and Article 26 of its Regulations.

11.
First, it is competent under the American Declaration of the Rights and
Duties of Man, because the events that gave rise to this complaint
occurred prior to the date on which the Brazilian state deposited its
instrument of accession to the American Convention on Human Rights (September
25, 1992).

12. Second, the Commission
is also competent to examine events (in this case the proceedings) prior
to September 25, 1992, insofar as they may constitute a continuing
violation or denial of the right to judicial guarantees and the right to
judicial protection (Articles 8 and 25 of the Convention, respectively).
The Brazilian state, on depositing its instrument of accession to the
American Convention, assumed, in keeping with the case-law of the
Commission and the Court, the explicit obligation to investigate and
punish the persons guilty, especially the members of the military police
involved. Nonetheless, in the present case it did not offer the
corresponding judicial guarantees and judicial protection to the victims
or their next-of-kin. This is expressed in the delays in the judicial
proceedings, especially in the military justice system, which, to this
day, seven years after the facts, are in the initial stage. In
proceeding in this fashion, it also failed to comply with the provisions
of Article 1(1) of the Convention, i.e. the duty to respect the rights
and freedoms recognized in it, and to guarantee their free and full
exercise to all persons subject to its jurisdiction. From these duties,
in the view of the Commission, and as the Inter-American Court of Human
Rights has indicated, is derived the duty to organize the whole
governmental apparatus and the structures in which it finds expression,
the exercise of public power, such that they are capable of legally
guaranteeing the free and full exercise of human rights. The duties to
prevent, investigate, and punish that we just referred to, and to re-establish
the right violated, if possible, and, as the case may be, to pay
compensation for harm caused.[11]

13.
Consequently, the Commission is competent ratione temporis to
hear and decide the instant case under the American Declaration (Article
XVIII) and also under the American Convention, with respect to the
procedures in the Brazilian criminal justice system, especially in the
military criminal courts, insofar as they constitute a continuing
violation of Articles 8 and 25 of the Convention with respect to its
Article 1(1).

14. On analyzing this
case, the Commission has taken into account the case-law of the European
Commission on Human Rights, which, while it has recognized and
repeatedly applied the principle of the non-retroactivity of treaties,[12]
in some of its decisions it has drawn a distinction between such
situations and others that constitute continuing situations or
violations. The European Commission has considered itself incompetent
ratione temporis to consider the first type of situations, but it
has assumed competence to examine continuing situations.

15. On this point,
the European Commission has noted:

Nevertheless, in
accordance with the generally accepted principles of international law,
the Convention is valid for all the Contracting parties only as it
pertains to events occurring subsequent to its entry into force for that
Party. In the case that those events consist of a series of legal
proceedings which extend over several months' time, the date of entry
into force of the Convention for the State Party in question serves to
divide the period into two parts: the first part falls outside the
jurisdiction of the Commission, while the second part cannot be rejected
on the basis of those arguments.[13]

16.
Along these same lines, the European Commission stated as follows in
another case related to the application of Article 25 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
and its Protocols:

The applicant has
submitted several complaints regarding the criminal proceedings carried
out against him in the Italian courts.

The Commission must
determine, first, if and to what point it is competent ratione
temporis to take cognizance of those complaints. In this regard, it
refers to its earlier case-law, which establishes that when the facts
consist of a series of legal proceedings, the date of entry into force
of the Convention for the state in question divides the period into two
parts, the first of which is outside of the Commission’s jurisdiction
ratione temporis, while the second cannot be rejected on that
basis. To the contrary, when a court hands down a judgment after the
entry into force of the Convention with respect to the state in
question, the Commission is competent ratione temporis to ensure
that the procedures carried out before a court are incorporated into its
final decision, which, accordingly, would include any flaw on the part
of said court.[14]

17. The
following has been argued with respect to the applicability of this
doctrine of the European Commission to the inter-American system:

... the doctrine
established by the European Commission and by the Human Rights Committee
under the International Covenant on Civil and Political Rights according
to which these organs have declared their competence to take cognizance
of facts prior to the date of entry into force of the Convention with
respect to a given state, so long as and to the extent that these facts
are susceptible to having as a consequence a continuing violation of the
Convention that is drawn out beyond that date, is applicable to the
inter-American system.[15]

III.
ADMISSIBILITY OF THE PETITION

18. The formal
admissibility requirements are provided for at Article 46(1) of the
American Convention on Human Rights, which establishes that in order for
a petition or communication filed in keeping with Articles 44[16]
and 45 to be admitted by the Commission, the following shall be required:

a. that the
remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law;

b. that the
petition or communication is lodged within a period of six months from
the date on which the party alleging violation of his rights was
notified of the final judgment;

c. that the
subject of the petition or communication is not pending in another
international proceeding for settlement; and

d. that, in
the case of Article 44, the petition contains the name, nationality,
profession, domicile, and signature of the person or persons or of the
legal representative of the entity lodging the petition.

19. The
present petition meets the formal requirement of admissibility provided
for at subparagraphs 1(c) and (d) of Article 46 of the Convention, as
the subject matter of the petition is not pending in any other
international settlement; moreover, it meets the requirement of
subparagraph (d), as it contains the name and signature of the legal
representative of the organization filing the petition, which is a
non-governmental organization legally recognized in one or more member
states of the Organization. The petition, moreover, is written on
letterhead stationery of that organization, which contains its name and
address. Accordingly, the Commission considers this requirement met.

20. The
Commission will now consider whether the petition meets the requirements
of Article 46(1)(a) and (b), and whether, if not, any of the exceptions
provided for at Article 46(2) apply. These provide:

The provisions of
paragraphs 1.a and 1.b of this Article shall not be applicable when:

a. the
domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly
been violated;

b. the party
alleging violation of his rights has been denied access to the remedies
under domestic law or has been prevented from exhausting them; or

c. there has
been unwarranted delay in rendering a final judgment under the
aforementioned remedies.

21. In
this respect, the Government of Brazil has raised a preliminary
objection for failure to exhaust domestic remedies, based on the fact
that the complaint in the instant case was filed immediately after the
underlying events, i.e. before there was time to set domestic remedies
in motion. It also argues that said remedies are still being processed.

22. The
petitioners, in turn, has argued that domestic remedies are ineffective,
and that the delay in the processing of the cases against the persons
responsible for the events at the 42nd Police District is unjustified,
as well as invoking the exception provided for at Article 46(2) of the
Convention. Moreover, the petitioners has alleged that the Government’s
argument that the complaint was submitted too quickly without giving any
time to set domestic proceedings in motion may have been valid in 1989,
but that today it is not. This is because more than six years have
elapsed since it was filed, without any final decision in this respect,
especially as regards the proceedings before the military courts.

23. As
the Inter-American Court on Human Rights has indicated:

The rule of prior exhaustion of domestic
remedies allows the state to resolve the problem under its internal law
before being confronted with an international proceeding. This is
particularly true in the international jurisdiction of human rights,
because the latter reinforces or complements the domestic jurisdiction (American
Convention, Preamble).[17]

24. This rule, according to
the Court, has implications that are not considered in the Convention.
One is the obligation the states parties assume to provide effective
domestic judicial remedies to the victims of human rights violations
(Article 25 of the Convention), and another is that these remedies must
be substantiated as per the rules of due process of law (Article 8(1) of
the Convention). All this occurs within the scope of Article 1(1) of
the Convention, which sets forth the obligation of the state to
guarantee to the persons under their jurisdiction the free and full
exercise of the rights recognized in the American Convention on Human
Rights.[18]

25. Now, it is clear that
the burden of proof with respect to the exhaustion of domestic remedies
is on the state that alleges non-exhaustion. This includes the duty to
indicate which domestic remedies must be exhausted, and their
effectiveness.[19]

26. In
the instant case, the Government of Brazil has limited itself to
alleging the failure to exhaust domestic remedies, without specifying
which of them could be useful. In addition, it has not refuted the
allegations related to the ineffectiveness of domestic remedies, nor has
it presented any documentary evidence in this regard.

27. Since the Government has
not objected to most of the petitioners’ allegations, nor has it
justified the delay and the lack of efficacy of domestic remedies, the
Commission must draw its conclusions in the absence of its more active
participation.[20]

28. In
the instant case, as appears from the record, the domestic remedies had
not been exhausted when the complaint was filed. Nor today, seven years
later, have they been exhausted, except for the case of one of the civil
police officers involved. In effect, according to the information
received up until the presentation of this report, the cases of two of
the civil police officers are on appeal, and the proceedings before the
military criminal courts are still at the stage of taking the statements
of witnesses for the prosecution.

29. The basis of the
international protection of human rights referred to in Article 46(1) of
the Convention lies in the need to safeguard the victim from the
arbitrary exercise of public power.[21]
The exceptions set forth at Article 46(2) of the Convention are aimed
precisely at guaranteeing international action when the domestic
remedies and the domestic judicial system are not effective when it
comes to guaranteeing respect for the human rights of the victims.

30. Accordingly, the formal
requirement with respect to the non-exhaustion of the domestic remedies
that guarantee the principle of due process (Article 46(2)(a) of the
Convention) refers not only to a formal absence of domestic remedies,
but also to the case in which they are not adequate; the denial of
justice (Article 46(2)(b) of the Convention) and the unwarranted delay
in justice (Article 46(2)(c) of the Convention) are also related to the
effectiveness of such remedies.[22]

31. In
this regard, the generally recognized principles of international law
refer both to domestic remedies existing formally and to their being
adequate to protect
the legal interest infringed and effective for producing the result for
which they were designed.[23]
This is why their exhaustion should not be understood as the need to
mechanically go through the formal procedures, rather, one must analyze,
in each case, the reasonable possibility of obtaining the remedy.[24]
Along these lines, the right to adduce failure to exhaust domestic
remedies as the basis for declaring a petition inadmissible must never
lead to “a halt or delay that would render international action in
support of the defenseless victim ineffective.”[25]
In other words, if the processing of the domestic remedies is drawn out,
without justification,[26]
one may deduce that they have lost their effectiveness for producing the
result for which they were designed, which “renders the victim
defenseless”[27]
It is in such cases that one must apply the mechanisms of international
protection, among others the exceptions provided for at Article 46(2) of
the Convention.

32. In the instant
case, the Government had the opportunity to refute the petitioners’
arguments in relation to the effectiveness of domestic remedies pursued,
and of the judicial system itself, especially the military criminal
courts. In addition, it had the opportunity to refute the arguments
related to the delay and the lack of diligence in processing the cases,
and, therefore, the lack of diligence of the judicial authorities and
the Public Ministry,[28]
which must take the procedural initiative. Nonetheless, it did not,
saying only: “there has not been unwarranted delay in the processing of
the cases.”[29]

33. The facts proven
indicate, however, that seven years have elapsed since the events in
question,[30]
and that no verdict has yet been handed down with respect to any of the
28 military police involved, and there has been a firm judgment in the
case of only one of the civil police implicated, who was acquitted.[31]

34. In view of the foregoing,
the Commission considers that the exception provided for at Article
46(2)(c) of the Convention, regarding unwarranted delay in criminal
proceedings, especially those in the military criminal courts, applies
to the instant case.[32]

35. The
Commission concludes, accordingly, that the complaint in the instant
case is admissible, in keeping with Article 46(2)(c), cited above.

IV. MERITS ISSUES

A. Responsibility of the Federal State of
Brazil for the acts of its agents

36. The Brazilian
state has not controverted the information submitted by the petitioners
with respect to the events of February 5, 1989 in a cell of the 42nd
Public District of the Parque São Lucas, in the city of São Paulo, which,
moreover, were publicized by the press and other local and international
media[33]
and have been studied by Brazilian organizations renowned for their work
to defend and promote human rights.[34]
On that occasion, approximately 50 detainees were enclosed in a cell
designed for solitary confinement, measuring one meter by three meters,
in which the state agents released tear gas. Eighteen of the detainees
died of asphyxia and 12 were hospitalized.

37. From the
information sent to the Commission, it appears that it was state agents
who ordered and carried out the acts that caused the deaths of 18
detainees and the injuries to 12 others, and that the Brazilian state
accepts this responsibility. Nor has it controverted the petitioners’
allegations[35]
that the prisoners, who were naked and defenseless, had first been
tortured by the police in charge of their custody.[36]

38. To the contrary,
in its briefs Brazil indicates, inter alia, that police
investigations were initiated to “look into the criminal and
administrative liability of the civil and military police officers
involved,”[37]
that “the civil police officers involved were suspended preventively,”[38]
that “in order to prevent the recurrence of similar episodes in the
future, it was decided that the so-called isolation cells (celas
fortes) of the police districts would be deactivated,”[39]
and that “the officers directly involved in the events will be suspended
on a preventive basis,”[40]
which constitutes recognition that the incident that culminated in the
death of 18 prisoners was caused by state agents. Similar assertions
can be found in several of the communications that the Government
forwarded to the Commission during the processing of the complaint.[41]

39. International law
attributes to the state the conduct of its organs when they act in that
capacity, even outside of the regular exercise of their scope of
authority. This includes the upper-level organs of the state, such as
the executive, legislative, and judicial branches, and the acts and
omissions of their officers or subaltern agents.[42]
This is so insofar as the state, being a fictitious juridical person,
can only act through its employees and organs.[43]

40. The
Inter-American Court of Human Rights, in its judgment of July 29, 1988 (Velásquez
Rodríguez Case), established the following in this regard:

under international law a state is
responsible for the acts of its agents undertaken in their official
capacity and for their omissions, even when those agents act outside the
sphere of their authority or violate internal law.[44]

41. In
other words, the Illustrious Government is responsible, in the instant
case, for the acts or omissions of its public agents, who inflicted
inhumane treatment on approximately 50 prisoners who were locked in a
very small isolation cell and who died or were injured as a result of
tear gas having been released into it. It is also responsible for the
acts and omissions of the agents entrusted with investigating the facts
and for the acts and omissions of its judicial branch, particular the
military courts, which seven years after the facts has yet to perform
the duty to investigate and punish the guilty.

42. Now,
as Brazil is a federal state, it is the national Government that must
answer internationally. In effect, Article 28 of the Convention
provides:

1. Where a
state Party is constituted as a federal state, the national government
of such state Party shall implement all the provisions of the Convention
over whose subject matter it exercises legislative and judicial
jurisdiction.

2. With
respect to the provisions over whose subject matter the constituent
units of the federal state have jurisdiction, the national government
shall immediately take suitable measures, in accordance with its
constitution and its laws, to the end that the competent authorities of
the constituent units may adopt appropriate provisions for the
fulfillment of this Convention.

43. Accordingly, the
Commission concludes that in the instant case, the federal state of
Brazil must answer internationally for the acts of the agents in charge
of the custody of the prisoners and of the guarding, administration, and
oversight of the detention center where the events occurred. It is
uncontroverted that these agents used excessive and irrational means to
control a group of prisoners, which resulted in the deaths of 18 of them,
and in injuries to several others. Moreover, it is responsible for
breaching Article XVIII of the American Declaration of the Rights and
Duties of Man (right to justice), which assures a simple and prompt
procedure by which justice protects the person against acts of the
authority that violate a fundamental right; for failure to comply with
Article 1(1) of the American Convention, which establishes the
obligation of the state to respect the rights and freedoms recognized in
the Convention and to ensure their exercise, and, finally, for breaching
the duty that derives from this provision, which consists of
“preventing, investigating, and punishing” the violations of rights
recognized by the Convention.[45]

44. The
Commission also concludes that it is a responsibility of the federal
state of Brazil to take the pertinent measures, in keeping with its
Constitution and laws, to get the competent authorities of the states
that are components of the federation to adopt the corresponding
initiatives to comply with the Convention, and in particular with its
Article 1(1), in keeping with Article 28(2) of the Convention.

B. The right to life

45. On February 5,
1989, approximately 50 detainees were locked in an isolation cell
measuring one meter by three meters, into which the state agents
released tear gas. Eighteen of the detainees died from asphyxia, and 12
were hospitalized. Considering that the Brazilian state ratified the
American Convention after the events that led to this complaint,[46]
the petitioners alleged that these incidents violate “at least” the
victims’ right to life, established at Article I of the American
Declaration of the Rights and Duties of Man. In some of their briefs
they also allege that the Government has violated Article 4 (right to
life) of the American Convention on Human Rights.

46. By
virtue of the non-retroactivity of treaties, addressed above in respect
of the Commission’s competence, the Commission considers that it must
examine the events of February 5, 1989, at the 42nd Police District in
light of Article I of the American Declaration, as regards the right to
life.

47.
Article I of the American Declaration reads:

Every human being has
the right to life, liberty and the security of his person.

48. The
above-cited provision establishes, as a basic principle, the prohibition
on the arbitrary taking of any person’s life.

49. As discussed above,
it is a principle of international law that the state answers for the
acts of its agents carried out in their official capacity, as well as
for their omission, even if they act beyond the scope of their authority,
or in violation of domestic law.[47]
This state responsibility attaches, among other situations, to
violations of the right to life resulting from the act or omission of a
state agent.[48]

50. In
the instant case, having locked so many people in a cell measuring one
meter by three meters, having obstructed the only ventilation duct
leading to it, and releasing tear gas within it constitute acts by state
agents that consciously and recklessly acted with disregard to the right
to life of the prisoners, and without bearing in mind the likely
consequences of their acts. These actions resulted in the deaths of 18
detainees, who died of asphyxia amidst their own excrement and vomit.
Accordingly, the Commission considers that the Brazilian state, as a
result of the action of its agents, has violated the right to life
(Article I of the American Declaration) of the 18 persons who died in
these circumstances.

C. Right to security and humane treatment

51.
Based on the principle of non-retroactivity of treaties, referred to
above, the Commission considers that it must examine the events of
February 5, 1989 at the 42nd Police District, not in light of Article 5
of the American Convention, but in light of Article I of the American
Declaration, insofar as it relates to the right to security and
integrity of the person.

52. In
this respect, the Commission considers that the agents of the Brazilian
state had a detrimental impact on the physical, mental, and moral health
of 50 detainees at the 42nd Police District, on beating them,
overcrowding them in a punishment cell measuring one meter by three
meters, and releasing tear gas in that cell, whose only ventilation had
been obstructed. As a result of these acts, 18 of the prisoners died,
and 12 were hospitalized. These actions were carried out in reckless and
intentional disregard for the human rights of the victims who died or
exited the cell covered in urine, feces, and vomit due to the effects of
the gases and the lack of ventilation.

53.
These acts, which are imputable to the Brazilian state, for having been
committed by state agents performing their functions, constitute a
violation of Article I of the American Declaration, which guarantees,
among other things, the right to security and integrity of the person.
This provision states, in the pertinent part: “Every human being has the
right to ... the security of his person.”

54. In
relation to the question of prisons and conditions of detention, the
Commission considers it appropriate to transcribe press release No.
12/95, released by it on concluding its on-site visit to Brazil, in
which it makes reference to this matter:

Its visits to the
correctional facility of Carandirú and the Third Police Delegation of
São Paulo gave the Commission a chance to confirm the authorities'
statements to the effect that those facilities are experiencing a
general crisis. Serious overcrowding is evident, with prisoners crammed
into unhealthful or cramped quarters or open air yards. Unconvicted
defendants are placed there together with first_time convicts and repeat
offenders. Health services are practically nonexistent in these
facilities. In addition, there are inmates entitled to be transferred to
lower security facilities who cannot be moved there because those
facilities lack space. In this connection the IACHR recommends to the
authorities that they immediately apply international standards on human
rights and Brazil's own laws on prisons, including urgent steps to
correct the appalling situation witnessed by the visiting Commission
members.

55.
Finally, the Commission deems it necessary to note that in its on-site
visit to Brazil it had occasion to verify that isolation cells (celas
fortes) are still in use, which refutes the information submitted by
the Federal Government in its answer brief of July 12, 1989, in which it
stated that such cells had been deactivated.

[1]
List submitted by the petitioner organizations on August 15, 1995.

[2]
This communication from the petitioners indicated that the civil
police officer were first suspended, but had then been assigned to
the Corregedoria da Polícia with administrative functions or
involving vigilance of the premises.

[3]
In this communication, the Government confirmed that three of the
police officer were at the disposal of the Corregedoria, denied that
the police involved were working in contact with the Commission in
charge of investigating the facts, and indicated that only two of
them were working as guards of the grounds, and were not involved in
the investigations.

[4]
In this communication, the petitioners indicated that the military
criminal proceeding was advancing more slowly than usual, since the
first hearing had been postponed three times: first due to the
health of the accused; the second because the judge’s calender was
overloaded; and the third because the accused had simply failed to
appear. This last delay was considered unacceptable.

[5]
In this communication, the petitioners reported that Celso José da
Cruz had been found guilty (of murder) in the deaths of the 18
prisoners and had been sentenced to 516 years in prison; that the
jury had accepted the prosecutor’s argument that Cruz had acted with
intent to kill when he locked the prisoners in a small cell, without
ventilation; and with intentional cruelty, when preventing them from
defending themselves. That for his part, José Ribeiro, the civil
police officer who was the jailer, had been sentenced to 45 years of
prison with the right to remain free while appealing the decision,
and that the prosecutor was intending to appeal that sentence since
it was lighter than the one imposed on Celso José da Cruz. The
petitioners requested that the Center for Justice and International
Law (CEJIL) be included as co-petitioners in this case, which was
accepted by the Commission.

[6]
In this communication, the petitioners reported that the civil
police officer Carlos Eduardo Vasconcelos had been acquitted of the
18 counts of homicide, as a result of a jury trial conducted August
8 to 12, 1994, and that the second trial, of José Ribeiro, was to
begin August 30, 1994.

[7]
In this communication, the Government reported that civil police
officer Celso José da Cruz, who in the first instance had been
sentenced to 516 years and seven months in prison, had had the
sentence reduced, on appeal, to 54 years and seven months. That the
civil police officer, jailer José Ribeiro, had been sentenced to 45
years of prison, and that, considering that both the prisoner and
the prosecutor had filed an appeal against that sentence, the
proceeding was continuing its course in the first panel of the Court
of Juries (“Primeira Vara do Tribunal do Júri”) of São Paulo. That
the third civil police officer accused, officer Carlos Eduardo
Vasconcelos, had been acquitted by a jury on August 12, 1994, and
that the Public Ministry had appealed the verdict, the appeal at the
time being heard, and that the military criminal trial was at the
stage of hearing witnesses, as the stage of taking testimony from
the accused had concluded.

[8]
Article 26 of the Commission’s Regulations in force when the report
on the merits in the instant case was adopted provided as follows:
“Any person or group of persons or nongovernmental entity legally
recognized in one or more of the member states of the Organization
may submit petitions to the Commission, in accordance with these
Regulations, on one’s own behalf or on behalf of third persons, with
regard to alleged violations of a human right recognized, as the
case may be, in the American Convention on Human Rights or in the
American Declaration of the Rights and Duties of Man.”

[9]
Article 51 of the Commission’s Regulations in force when the report
on the merits in the instant case was adopted provided as follows:
“The Commission shall receive and examine any petition that contains
a denunciation of alleged violations of the human rights set forth
in the American Declaration of the Rights and Duties of Man,
concerning the member states of the Organization that are not
parties to the American Convention on Human Rights.”

[10]
That Declaration, the Final Act of which was signed on May 2, 1948,
in Bogotá, Colombia, by the Plenipotentiary Delegates of the
Illustrious Government of Brazil, is a source of international
obligations for Brazil.

[16]
Article 44 of the Convention provides: “Any person or group of
persons, or any nongovernmental entity legally recognized in one or
more member states of the Organization, may lodge petitions with the
Commission containing denunciations or complaints of violation of
this Convention by a State Party.”

[26]
Such delays have a negative impact on the effectiveness of domestic
remedies, since they lead to the deterioration of evidence,
especially witness evidence, which over the years may change, or
facts are forgotten. This clearly undercuts the effectiveness of
procedures aimed at determining responsibilities and punishing the
guilty.

[28]
In this respect, one must bear in mind that in crimes of public
action and even those that depend on private initiative (in criminal
matters), the State has the non-delegable obligation to prosecute
criminal offenses, i.e. to preserve the public order and guarantee
the right to justice. In these cases, accordingly, it is not valid
to demand of the victim or the victim’s next-of-kin that they
exhaust domestic remedies. In effect, the state, through the Public
Ministry, must set in motion the criminal justice system, promoting
and giving impetus to the procedural stages until their conclusion.
In relation to this point, see, for example, Report No. 12/95, Case
11,218, Nicaragua, OEA/L/II.90 Doc. 16, September 13, 1995, para.
7.19. As a Brazilian treatise-writer states, the Public Ministry is
the “representative of the law and overseer of its enforcement.”
See Luis Claudio Alves Torres, Prática do Processo
Penal Militar, Editora Destaque, Rio de Janeiro (1993), p. 31.
With
respect to the necessary diligence that the Public Ministry should
display in exercising procedural initiative, see Inter-American
Court of Human Rights, Velásquez Rodríguez Case, Judgment of
July 29, 1988, para. 79. In the same judgment, the Inter-American
Court of Human Rights indicated that the duty to investigate “must
have an objective and be assumed by the State as its own legal duty,
not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.” Id.,
para. 177.

[29]
Note No.22 from the Government of Brazil, of January 16, 1990,
received January 26, 1990.

[31]
The Government of Brazil reported that, as a consequence of criminal
proceeding 227/89, initiated to judge the civilian police involved,
indictments were handed down against civilian police officers José
Ribeiro, Carlos Eduardo Vasconcelos, and Celso José da Cruz (see
information submitted by the Government of Brazil on September
29,1989). Similarly, and
still referring to the information provided by the parties, in
criminal case 227/89, defendant Celso José da Cruz was sentenced on
September 29, 1993, to 516 years and seven months in prison, in the
first instance, and to 54 years and seven months, on appeal;
defendant José Ribeiro was sentenced, on December 1, 1993, to 45
years in prison in the first instance with a right to appeal, with
release pending the appeal, even though both the office of the
prosecutor and the defense appealed that sentence; and defendant
Carlos Eduardo Vasconcelos was acquitted on August 12, 1994, a
decision that was appealed by the Public Ministry on August 15, 1994
(additional information submitted by the Government on October 18,
1993 and December 2, 1994). As of the date of the preparation of
this report, the latter two appeals have not been resolved, even
though more than a year-and-a-half has elapsed since those appeals
were filed by the Public Ministry.

[32]
According to information received from the Government on December 2,
1994, the action in the military criminal courts against the 28
military police involved in the crime was at the stage of hearing
from witnesses for the prosecution, as the questioning of the
accused had concluded. This information was confirmed on August 10,
1995, by the petitioner organizations.

[35]
Additional information sent by the petitioners on August 10, 1995,
and received August 15, 1995. This information was not controverted
by the Government of Brazil.

[36]
According to press information, the dead were part of a group of 51
prisoners who had been locked, naked, in a cell designed for
solitary confinement. When the police officers in charge of the
prisoners’ custody went to open the door, nine had died from
asphyxia; nine others died later, at the hospital. Twelve of the
survivors who had testified in a preliminary investigation stated,
according to the Washington Post, that with the help of members of
the militia, the police officer on duty at the time, detective Celso
José da Cruz, had forced the men to enter the cell as punishment for
an attempted escape by 64 prisoners, two days earlier. One of the
members of the Human Rights Commission of São Paulo who interviewed
the survivors, Father Agostinho Duarte de Oliveira Guerra, stated:
“This was not only degrading and inhumane punishment, but torture.”
(“Brazilian Deaths Coincide with U.S. Rights Report: 18 Men
Suffocate in São Paulo Jail Cell”), R. House, Washington Post,
February 16, 1989, p. E1).

[43]
The following quote illustrates in simple and graphic terms what we
have just said: “In the State administration of this country, the
functions granted to the secretaries (constitutionally granted to
the ministers because they are constitutionally accountable) are so
diverse that no secretary could carry them out personally. The
obligations imposed and the powers granted to the secretaries are
generally exercised under their authority by responsible officers of
each department. Were it otherwise, it would not be possible to
conduct public affairs. Constitutionally, the decisions of those
officers are naturally decisions of the secretary. The secretary is
accountable. He is the one who must answer to Parliament for any act
that the officers have performed under his authority and, if he
should delegate an important matter to an inferior officer of whom
one would not expect competent performance of the task entrusted,
the secretary would have to answer to Parliament. The whole system
of organization and administration by departments is based on the
assumption that the secretaries, as they are accountable to
Parliament, will see to it that the important tasks are entrusted to
experienced officers. And if they do not act in this manner, it
is to Parliament that any complaints should be addressed.” (Emphasis
added.) See, Trial of Lord Green M.R. en Carltona Ltda. Y.
Commissioners of Works and Others (1943) 2 All E.R. 560, cited
in Commission on Human Rights, Subcommission on Prevention of
Discrimination and Protection of Minorities, 45th session
E/CN.4/Sub.2/1993/21, June 25, 1993, footnote 108, p. 81.

[46]
The facts that culminated in the death of 18 prisoners in the 42nd
Police District of São Paulo occurred on February 5, 1989, and the
illustrious Government of Brazil ratified the Convention on
September 25, 1992.

[48]
See, for example, the decision of the Human Rights Committee related
to the sudden death of a political prisoner. It states, in that
case: “While the Committee cannot arrive at a definite conclusion as
to whether Hugo Dermit committed suicide, was driven to suicide or
was killed by others while in custody; yet, the inescapable
conclusion is that in all the circumstances the Uruguayan
authorities either by act or by omission were responsible for not
taking adequate measures to protect his life, as required by Article
6(1) of the Covenant.” Human Rights Committee, Dermit v. Uruguay
(No. 84/1981), para. 9.2, 1983 Report, p. 135.